from the if-you-can't-beat-'em,-blame-'em dept

It is with no great sadness that I bring you the news that schoolkid data harvester inBloom will be shutting down. Many schools were looking for a better way to quantify their student body, and this solution seemed to be just as much of a judgment error as any.

People may like Twitter, Facebook and other social media outlets, but they still value privacy, especially when it comes to their kids. It may seem counterintuitive, but that's the way it is. It's one thing if your kids give this information up voluntarily. It's quite another when it's extracted by their educators and handed off to a third party.

People are a little touchy about data collection nowadays.

They were most certainly touchy about inBloom, a non-profit that was offering to house and manage student data for public school districts across the US by extracting a dizzying array of information - we're talking 400 data fields - from disparate school databases as well as from new, optional, sometimes intrusive categories that inBloom also offered.

inBloom went further than just collecting data sets on grades, attendance, etc. It dug deep (as deep as school administrators would allow it to), looking for info on household members, as well as (in one case) hoovering up students' social security numbers despite its own policies against the collection of this personal data.

It started out big, hauling in contracts with nine states in early 2013. By November, parental backlash against the data mining of their kids resulted in that number shrinking to only three. Less than six months later, inBloom appears to be completely dead.

Over the last year, the incredibly talented team at inBloom has developed and launched a technical solution that addresses the complex challenges that teachers, educators and parents face when trying to best utilize the student data available to them. That solution can provide a high impact and cost-effective service to every school district across the country, enabling teachers to more easily tailor education to students' individual learning needs. It is a shame that the progress of this important innovation has been stalled because of generalized public concerns about data misuse, even though inBloom has world-class security and privacy protections that have raised the bar for school districts and the industry as a whole.

Shame about that pesky "public," eh? Likes Facebook, hates the idea that their kids being mined for data via compulsory education. But rather than admit the public might have a point, inBloom's CEO thinks people just don't get it.

The use of technology to tailor instruction for individual students is still an emerging concept and inBloom provides a technical solution that has never been seen before. As a result, it has been the subject of mischaracterizations and a lightning rod for misdirected criticism.

Streichenberger will be "winding" the company down over the next several months, presumably from his current position on the cross. Once this is shuttered, he may be able to move on to lucrative positions with other unfairly maligned data harvesters like the NSA. Or maybe he can seek solace within the educational system itself, where he can find colleagues in administrative positions who also suffer greatly from "mischaracterizations" and "misdirected criticism" in their student-related endeavors.

Look, I realize it's tough to see your dream business being forced out of existence, but as irrational as it sounds in this era of oversharing (and over-collection), people still want to believe their kids aren't being used as data conduits by their schools or any other entities beyond. inBloom's CEO believes parents were just misled somehow and have fallen victim to their baseless paranoia. But to be a parent is to be paranoid, even needlessly. Telling them they're wrong won't change it, and telling them they're wrong when your company isn't 100% in the right is only going make those paying attention even more resistant to the next company and their "for the children" data harvesting schemes.

from the nicely-done dept

A few years ago, we wrote about how a guy named Dimitry Shirokov, with help from the law firm of Booth Sweet had taken on the "fathers" of copyright trolling in the US, Dunlap, Grubb & Weaver, who had formed an organization called US Copyright Group, which initiated the first round of mass copyright trolling in the US (before the likes of Prenda and others entered the space). Shirokov had tried to make his lawsuit a class action against the lawyers, claiming fraud and extortion. And while the class action part was unfortunately rejected, the case has ended with a victory for Shirokov, with the judge ordering DGW to pay $39,909.95 ($3,179.52 to Shirokov and the rest in attorneys' fees to Booth Sweet).

The money to Shirokov was a result of DGW basically caving (it has long since dropped its copyright trolling efforts), and offering to pay up to settle the case and close it out. The latest ruling was just about the attorneys' fees to pile on top. While Booth Sweet notes that the victory is bittersweet because they'd hoped for the class action to fly and because they'd sought a lot more in attorneys' fees, it is still a victory on the books against trolling, which hopefully will come in handy in other such cases.

from the urls-we-dig-up dept

Robots are getting better and cheaper all the time. Sure, they're not perfect, but then neither are humans (and we, initially, design and build the robots). Some day, though, robots might start improving upon themselves at a rate that outpaces our human capacity. It could be a huge benefit to civilization to be able to replace all dangerous labor with robotic slaves, but some folks are worried about what the world will look like when robots are really that advanced. Here are just a few links on the scenarios of a robot-dominated age of technology.

from the the-'due-process'-railroad dept

An innocent man, who had 22 years of his life taken away by deceitful police officers and prosecutors, has just received a gift from the Third Circuit Court of Appeals, which has stripped the defendants of their immunity. Everything about the case is appalling -- from the murders themselves to the behavior of law enforcement.

Byron Halsey, a man with a sixth-grade education and "cognitive limitations," was railroaded into two life sentences plus 20 years by police officers who ignored evidence pointing to another person (Clifton Hall, Halsey's next door neighbor and convicted sex offender). The details of the PD's behavior in the court's opinions are very troubling. Without a doubt, the zealous prosecution of an innocent man was motivated by the brutal rape, mutilation and murder of two children, aged 7 and 8. But they went too far in their quest to find someone to punish, ignoring their investigative capacities in order to frame Halsey for the murders.

The first round of lies surrounded Halsey's polygraph test, which was accompanied by an apparently handwritten waiver form which permitted the use of the test results as evidence against him as well as revoked his ability to call an expert witness of polygraph tests in his own defense. Halsey still should have had nothing to fear, because he was telling the truth.

Halsey ate breakfast and then took the polygraph, which, according to an uncontested expert report written years later by Charles Honts, Halsey’s expert on polygraphs, he passed. This report, which Honts prepared with the use of methods of assessing polygraph results that had been upgraded since the time that Brannon gave the test, indicated that despite “some serious problems with the design and implementation” of the exam, Halsey registered “the strongest truthful score possible,” even according to the metric used in 1985.

But telling the truth did nothing for investigators looking to put someone in jail. They spun the test results this way:

Nevertheless, [Raymond] Lynch [prosecutor's office, Major Crimes Division) testified at Halsey’s criminal trial that when he met with Brannon at the prosecutor’s office, Brannon’s “preliminary” view was that Halsey “was attempting deception.” In fact, [Peter] Brannon [Plainfield Police Dept.] subsequently indicated in a written report that Halsey had lied in some respects, he was likely the killer, and he had acted alone.

Note that Brannon never said Halsey lied -- just that he was "attempting to." The polygraph said otherwise but Brannon had one, and only one, suspect in mind. So, he presented the test that should have cleared Halsey as one that actually implicated him. Brannon's false assertion had a clear effect on those interrogating Halsey, who now felt they had their man. All they needed was a confession.

The tactics changed. Frank Pfeiffer [Plainfield Police Dept.] honed in on Halsey, telling him he had failed his polygraph and pressuring him to confess.

Pfeiffer and Lynch interrogated Halsey for six uninterrupted hours (following on-and-off questioning during the previous 30 hours, some of which was only "recorded" in a report written by Pfeiffer four days later). The only records of this particular interrogation were handwritten pages slid under the door to the assistant prosecutor (David Hancock) waiting outside the interview room.

Hancock was present to suggest any questions that the detectives might have forgotten to ask and to determine whether there was sufficient probable cause to charge Halsey with the murders…

But Hancock was unable to understand the interview room’s occupants’ conversation and assumed that the pages appellees were sliding to him were an accurate transcription of Halsey’s statements.

So, the entire "confession" was composed of notes taken by an officer and a prosecutor who both convinced they were talking to a murderer. There was no impartial witness or legal representation, no cameras and no recordings. (Please note that the FBI, despite its massive budget and access to millions of dollars worth of electronics, still exclusively uses this method of "recording" during its interrogations -- handwritten notes by agents.)

This handwritten statement was signed by a "tired, frustrated" Halsey who just "wanted to go home." Hancock drew up the charges and the justice system started rolling. But this was the only "evidence" the prosecution had that "tied" Halsey to the murders.

During a hearing in a state trial court on a motion to suppress evidence of the confession, the prosecutor indicated that if the court excluded Halsey’s signed confession, the prosecution would not have sufficient evidence to proceed with the case because the confession was the sole direct evidence linking Halsey to the crimes as there was no physical evidence or eyewitness testimony supplying such a link.

Despite hearing that the only thing connecting Halsey with these murders was several pieces of paper written by a police officer and a prosecutor, the state court allowed the "confession" to be admitted.

This happened in 1985. In 2006, the county prosecutor's office agreed to allow some of its collected evidence from the crime scene to be tested for DNA. This testing cleared Halsey and implicated Hall, the next door neighbor who was interviewed briefly in 1985 by Plainfield police officers. Halsey was released in 2007. Now, he's in his fourth year of pursuing his lawsuit against several members of the Plainfield law enforcement community.

Officer Pfeiffer and county prosecutor Lynch had both asked for qualified immunity, which the Third Circuit Court of Appeals has denied. They have challenged Halsey's claim of fabrication of evidence, but their arguments have failed to move the court.

Appellees argue that they cannot be held liable either for fabricating Halsey’s confession, because it “only had relevance once signed,” or for writing their reports describing the investigation, because they wrote those reports after the prosecutor already had filed the charges against Halsey. Pfeiffer’s br. at 30. Those contentions besides being unpersuasive, come too late.

The court points out that even unsigned confessions have relevance, especially if the person has waived their Miranda rights (as Halsey did), so this part of the argument is a non-starter. The second part is simply disingenuous, as the false confession was precisely what led to the charges -- and what made them stick.

Appellees allegedly inserted nonpublic facts about the crime (of which Halsey could not have been aware) into a detailed oral confession that Halsey maintains he never made. Their purported fabrication was double-edged: they told the prosecutor that Halsey had confessed even though he had not done so, and they included critical details in the confession to enhance its credibility in order to induce the prosecutor to proceed against Halsey. Accordingly, even if appellees’ contention that oral confessions have no “relevance” were correct in the abstract, as already noted, Halsey’s confession was quite relevant because it played a crucial role in the prosecutor’s decision to charge him.

From that point on, the court takes apart the defendants' remaining arguments, as well as the previous court's decision granting summary judgement on all claims. The appellees try various tactics, from arguing that the Fourteenth Amendment was interpreted differently in 1985 to claiming that the "lens of innocence" means any overturned case involving a confession could put law enforcement on the receiving end of a coerced confession lawsuit, but the Third Circuit isn't buying it.

Instead, the court points out just how damaging granting immunity in this case would be.

A different view is not just unsupported; it is untenable. Adoption of the District Court’s conclusion would mean that there would not be a redressable constitutional violation when a state actor used fabricated evidence in a criminal proceeding if the plaintiff suing the actor could not prove the elements of a malicious prosecution case, such as the lack of probable cause for the prosecution. We need not look beyond this case for a basis to reject appellees’ contention that evidence-fabrication claims must be tied to malicious prosecution cases. The District Court concluded that there was probable cause to charge Halsey even without considering his confession. Even if we agreed with this conclusion (and we do not), we believe that no sensible concept of ordered liberty is consistent with law enforcement cooking up its own evidence.

We emphatically reject the notion that due process of law permits the police to frame suspects.

Halsey won't get twenty-two years of his life back, but he will be allowed to continue his lawsuit against those who deprived him of his freedom. And the Circuit Court's opinion helps shore up Fourteenth Amendment protections for everyone

from the tumbling-down dept

A couple of months back, Tim Cushing wrote about a Massachusetts court finding that warrants are indeed required in order for law enforcement to get cell phone GPS data for use in a criminal case. That victory for the Fourth Amendment rights of US citizens was bound to have wide-ranging repercussions within the legal and penal systems. We didn't have to wait long, as one Florida man is appealing his 162 year prison sentence because prosecutors relied in part on locations data obtained without a warrant in his trial.

Lawyers for a south Florida man serving almost 162 years in prison for his role in a string of armed robberies told a U.S. appeals court that prosecutors had no right to use cell phone location data during his trial and the double life sentence without parole was cruel and unusual punishment. The American Civil Liberties Union (ACLU) argued that authorities should have had to show probable cause and obtain a search warrant before seeing cellphone records for 22-year-old Quartavious Davis. The case comes as federal circuit and appeals courts around the country have been wrestling with cellphone privacy issues.

Now, it should be noted that the prosecution also had the testimony of several alleged accomplices of Davis', who all received shorter sentences for their cooperation, and this post isn't intended to proclaim his innocence. In fact, he may very well be guilty, which is what makes the government's cavalier attitude towards gathering evidence all the more egregious. If this guy is guilty and walks on a technicality, when better police work could have kept him behind bars, that's on the government.

That said, regardless of his guilt, the sentencing aspect of this case is insane.

The unusually long sentence stemmed from a controversial practice known as "stacking," in which each charge in an indictment is counted as a separate crime. The policy transforms a first-time offender into a "habitual criminal" subject to multiple sentences and mandatory sentencing guidelines.

The district court judge said if he had been able to make the decision himself, "he would have given him 40 years with parole," said Shapiro.

Nothing like a little prosecutorial trick to simultaneously make a name for one's self and ensure that justice takes a backseat to politicizing the life-sentence of a man prosecuted with warrantless GPS data.

from the now-make-it-so dept

We're still fairly skeptical about FCC boss Tom Wheeler's claims that (1) his new open internet rules will actually protect net neutrality or (2) he's ready to go even further if they fail. However, in his latest attempt to claim that he's really a defender of an open internet (at a cable lobbying event, of all things), Wheeler also said that he'll have the FCC preempt state laws blocking municipal broadband competition. If true, this actually could be a big deal. The big broadband players have fought hard against municipal broadband for years, pushing bills in many states. It's so obvious that these bills are written by the broadband players, that some politicians don't even hide it.

However, since the Supreme Court said that it was okay to ban muni broadband a decade ago, broadband lobbyists have had a field day, passing such bans in 20 states. For years, we've been arguing that the threat against net neutrality is a symptom, not the real problem. It's a symptom of the lack of competition. And one way to attack the competition problem is via municipal broadband. Yes, some muni broadband projects have failed, but many have been quite successful -- and opening up the possibility of competition tends to do amazing things in making the incumbents actually sit up and realize that they need to do a better job.

Given all that, it is a fairly big deal to see Wheeler flat out say that he's going to knock down those muni broadband bans:

[F]or many parts of the communications sector, there hasn't been as much competition as consumers and innovation deserve. Given the high fixed costs and consequent scale economies, this isn't especially surprising. But that makes it all the more important that we knock down public and private barriers to competition and avoid erecting new ones. It is equally important that we encourage competition wherever it is possible.

One place where it may be possible is municipally owned or authorized broadband systems. I understand that the experience with community broadband is mixed, that there have been both successes and failures. But if municipal governments—the same ones that granted cable franchises—want to pursue it, they shouldn't be inhibited by state laws. I have said before, that I believe the FCC has the power—and I intend to exercise that power—to preempt state laws that ban competition from community broadband.

We'll see what actually happens. As Jon Brodkin at Ars Technica notes (in the link above), there is still wiggle room, since many of those 20 state bans aren't technically "bans" -- but rather put up huge, impenetrable obstacles to muni broadband. Still, if Wheeler is serious about creating competition this is a very good place to start (though, not nearly enough on its own). Of course, doing so will require fighting the broadband players who, given how much they spent on getting those laws in place, will fight back hard.

from the no-it-won't dept

It's been pretty well established that one barrier to movie studios making more money is the silly release windows they apply to their films. As such, you can be sure that many great thinkers and deft minds have been hard at work trying to figure out a new model that will produce just as much coin while nixing the release windows entirely. This article is not about one of those models.

No, this article is about a big bucket of crazy coming from Dreamworks' Jeffrey Katzenberg, who claims that the future business model will be to price out what you pay for a movie based on whatever the dimensions of the screen you're planning to watch it on. Seriously.

Those who watched on a "movie screen" would pay the most while those using smartphones would only pay a small fee, Jeffrey Katzenberg said. This pricing model will be common in 10 years' time, he told a US conference. The pricing model he suggested was $15 (£9) per film for a movie-sized screen, $4 (£2.40) for a 75in (190cm) TV and $1.99 (£1.20) for a smartphone.

This won't happen. I don't mean to say it won't be tried. It might. But it won't last. Why? For a myriad of reasons, not the least of which are the technical hurdles.

The Verge thought the idea faced some technical hurdles.

"Given the diversity of video streaming options available today, it's hard to imagine a security system that would reliably recognise the exact size of the screen it's being displayed on," wrote commentator Vlad Slavov.

And that, frankly, is the least of the reasons why this won't work. Add to that the simple methods for getting around the pricing model (such as hooking up a smart phone to a television screen with a $2 cable), not to mention the simple plain fact that this doesn't make any economic sense. Basing the price of a product upon a physical device that isn't owned by the producer is a bold move. By which I mean it has no basis in established economic theory. Can you imagine iTunes trying to charge you different prices for music based on the size of your speakers? Or video game makers charging more or less based on how much power your computer packs? The product is the product and where it is consumed is the purview of the consumer.

That said, it's nice to see that industry folks are at least coming around to the idea that release windows are going away. I just wish they'd come up with replacement business models that didn't make my head hurt.

from the protectionism-against-disruption dept

Over and over again in talking about innovative disruption, we talk about how incumbents turn to regulators and politicians to kill off that disruption. Usually, they don't admit it directly -- preferring to couch their language in talk about "safety" and protecting consumers -- even though many of these disruptive systems actually appear to be better for consumers. However, sometimes politicians are willing to just flat out admit that they're trying to protect incumbents from innovative upstarts. And that's what's now happened with NY's Attorney General, Eric Schneiderman.

Last fall, we wrote about how Schneiderman was demanding information on 15,000 AirBnB users in NY, claiming that he was hunting down "long-term illegal rentals." In a NY Times article highlighting how AirBnB users (from both sides of the market) are pushing back against Schneiderman's crusade against AirBnB, Schneiderman finally admits what everyone has known all along. He's doing this to protect the big NY hotels from getting disrupted. And yes, he sandwiches the claim between claims of "just enforcing the law" and "protecting" people, but the message is pretty clear. This is about protecting the incumbent hotels:

First he said that “we have a well-regulated and extraordinarily successful hotel sector” that is “one of our finest industries and contributes a lot to the economy.” Then, a bit later, he added, “We’re just looking in New York to enforce New York law, and also, frankly, to protect our hospitality industry that goes through a lot of trouble to have great hotels, to protect tourists, to provide services, and to protect the people in our residential housing.”

It is true that NY law prevents short-term apartment rentals (basically anything less than 30 days). But to pretend this is about protecting the public is just ridiculous. I've stayed at many hotels in NY and a few AirBnB places -- including some that likely fit Schneiderman's definition of an "illegal hotel." And, without question, the AirBnB experience every single time has been vastly superior to the hotel experience. It's not even close. Assuming Schneiderman allows it to exist, I'll continue to make use of AirBnB, and it's not just because it's usually cheaper (though it often is), but the overall experience is phenomenal. I get to stay in unique and interesting places in unique and interesting neighborhoods -- usually much more convenient for my travel needs. One AirBnB host I met owns three apartments, living in one (renting out the spare bedroom), but mostly focusing on full time renting out the other two. The service was great -- and much more personalized than any hotel I've ever stayed in.

The last thing I want is for NY's Attorney General to "protect me" from that.

from the oh-really? dept

Following his weak attempt to diffuse concerns about his bogus "open internet" rules, FCC boss Tom Wheeler has decided to try again, by basically repeating what he said last week with slightly stronger language about how he won't let broadband providers violate net neutrality. Of course, as many people have explained, the problem is that the new rules clearly aren't strong enough, and leave open all sorts of ways to kill off basic neutrality online. Of course, the real problem is that the original 2010 "open internet" rules (which were really crafted by the telcos in the first place) didn't really protect net neutrality in the first place, and the new rules are basically an even weaker version of those rules. But, have no fear, claims Wheeler, if these rules don't work, he promises he'll actually pull out the big gun, Title II, and reclassify broadband players as telco services rather than information services, allowing the FCC to put them under common carrier rules.

...all regulatory options remain on the table. If the proposal before us now turns out to be insufficient or if we observe anyone taking advantage of the rule, I won’t hesitate to use Title II. However, unlike with Title II, we can use the court’s roadmap to implement Open Internet regulation now rather than endure additional years of litigation and delay.

There is some truth in what he's saying. Basically, the appeals court ruling that rejected the previous rules did lay out a roadmap for rules that would be deemed more acceptable under the current classification, and Wheeler's plans appear to be to do exactly what the court suggested. And, to some extent he's right that this is the fastest way to get some kind of rules in place. But considering that they're even more watered down than the original, with the new "required" language leaving enough loopholes to make them meaningless, it almost seems like why bother. The best we could hope for is that Wheeler is actually trying to use the Ed Felten-like concept of "the best form of net neutrality" being one where there aren't any actual rules, but a constant threat of rules being enforced if the broadband providers stray too far.

But there's a problem there... in that the broadband providers have already started going too far, and they seem to keep pushing the boundaries further and further each time, without the FCC doing anything, (and in ways that don't directly impact those "open internet" rules). Also, while Wheeler is right that going the Title II route would create a legal (and political) shitstorm leading to many years of litigation and delay, the same may be true of his new rules. After all, he's only putting them forth after a four-year legal battle over the old rules.

But the biggest issue is that the FCC still doesn't seem to realize how the broadband providers have been increasingly chipping away at net neutrality anyway, without any pushback at all. As DSL Reports details, the FCC seems to think that all network neutrality violations are big and obvious, when the reality is quite different:

What's considered "commercially unreasonable" is also going to be open to immense ambiguous interpretation. Wheeler for example seems perfectly ok with the increasingly ugly interconnection and peering fights arising between Verizon, Comcast, AT&T and Netflix, and has stated these won't be included in the rules. He also seems similarly tone deaf to the potential pitfalls facing wireless courtesy of concepts like AT&T's Sponsored Data, which critics charge will result in deep-pocketed companies (like ESPN) getting a huge leg up on smaller companies that can't afford AT&T's toll to be listed as "cap free" content.

Wheeler's comments to date strongly suggest his threshold for what's going to be considered anti-competitive behavior will be stratospherically-high, and as is the case now -- carriers will still be able to get away with anti-competitive behavior provided they're relatively clever about it.

Promising to pull out the Title II gun is talking big for a government agency that has been big on talk, but has little history of action. And thus, it's a threat that doesn't seem to have much weight.

from the say-what-now? dept

We've been among those critical of the White House for the administration's dangerous policy of not revealing security vulnerabilities it discovers, as it seeks to exploit them. In trying to respond to some of the criticism about this policy, the White House has put out a blog post by White House Cybersecurity Coordinator Michael Daniel, in which he explains how the intelligence community determines whether to disclose a vulnerability... or hoard it for its own use. He lists out three potential reasons for not disclosing:

Disclosing a vulnerability can mean that we forego an opportunity to collect crucial intelligence that could thwart a terrorist attack stop the theft of our nation's intellectual property, or even discover more dangerous vulnerabilities that are being used by hackers or other adversaries to exploit our networks.

As Marcy Wheeler points out, withholding the release of such vulnerabilities for terrorism purposes is not new or surprising. Ditto for so-called cybersecurity (protecting against "hackers or other adversaries" looking to "exploit our networks") What's a bit of a surprise is the new inclusion of "intellectual property theft." However, the NSA, DHS and various supporters have long used claims of China "stealing intellectual property" as an excuse to try to ratchet up surveillance powers. Rep. Mike Rogers, author of CISPA, used the "scary Chinese stealing our IP!" FUD card to push CISPA a few years ago. And former cybesecurity czar Richard Clarke has argued that China stealing intellectual property is a good reason for DHS to be able to spy on all internet traffic.

So, the fact that this argument is used as a sort of "cybersecurity" claim perhaps isn't that surprising. However, it still seems like a massive logical leap to go from "well we need to protect corporate intelletual property from the Chinese" to arguing that's a good reason for withholding the disclosure of key technical vulnerabilities that might put everyone at risk. Does anyone honestly believe that the US government should withhold details of a major technical vulnerability... just so it can catch some IP infringers?

And of course, by broadly allowing the NSA and others to fail to patch vulnerabilities, because they want to "prevent intellectual property theft," it's just opening up the whole system to be abused even more widely than before. Sure, they may mean "stopping Chinese hackers from swiping plans for a new fighter jet," but vaguely denoting that it can withhold info on zero day vulnerabilities because of "pirates" seems wide open to abuse -- especially given the way many in law enforcement and the administration seem to want to equate every day file sharers with "internet terrorists" or whatever.

from the terrible-arguments-made-terribly dept

The other Supreme Court case dealing with warrantless cell phone searches heard oral arguments this week, with some intermingling from a lawyer presenting the US government's side in a related case (US v. Wurie). We recently covered the government's arguments for warrantless searches in US v. Wurie, a case dealing with outdated technology -- a flip phone. This case (Riley v. California) is from 2013 and deals with a smartphone, one that received a much deeper search by police officers.

In both cases, no one sought a warrant. The government argued in the Wurie case that a warrant "served no purpose" but to allow the locked-up criminal to erase evidence from a phone in police possession. Lots of technological speculation was presented, suggesting that every small-time crook would wipe or encrypt their phone to prevent the recovery of evidence. The government presented a tech arms race where law enforcement is always losing as the impetus for throwing the Fourth Amendment out the precinct window.

Strangely, in both cases, the government has made the claim that the officers involved already had enough probable cause to secure a warrant, but they simply chose not to. Jeffrey Fisher, arguing for Riley, points out that this is no excuse.

This Court has said time and again that the mere fact the police could have gotten a warrant but didn't does not excuse a Fourth Amendment violation.

If this "we could have gotten a warrant" excuse seems familiar, it's because it's been used far too often to justify warrantless searches. Earlier this year, the Tallahassee Police Dept., in its defense of its privacy-violating Stingray deployment, told a judge that it could have secured a warrant (but didn't) with all the probable cause it had in its possession, a statement that prompted this outraged response:

When the government attorney tried to argue in court that the police had planned to obtain a warrant to enter the apartment, one of the judges interrupted.

"No, no, no, no, no," he said. "I think this record makes it very clear they were not going to get a search warrant because they had never gotten a search warrant for this technology."

His fellow judge then interjected loudly, "Two-hundred times they have not."

So, there's the government antipathy towards warrants on full display. But the warrant process does something very important: it forces the police to justify the search, narrow the scope and put it all in front of a (supposed) neutral party -- a magistrate judge. In actuality, it's usually a very speedy process, but during these arguments, the government acts like it's a horribly laborious imposition.

In Riley's case, the lack of warrant requirement allowed the police to browse Riley's phone until it found something incriminating.

He [detective] said, at JA­11, we looked at a whole lot of stuff on the phone and that's just what, in his words, "caught his eye."

As Fisher points out, the government's idea of protecting someone's rights involves searching first and allowing questions to be asked later -- a complete inversion of how the Fourth Amendment is supposed to work.

What the government says is let the officer look and then have a back­end hearing where you just suppress all the stuff that he wasn't supposed to look at once you apply particularity requirements.

This attitude (also on display in the Wurie response) presumes people will make it to that point, rather than taking a plea or simply not having the resources to fight a suppression battle in court. This places the onus on the wrong party and puts citizens in the terrible position of policing law enforcement at their own expense.

As the justices point out during their discussion with Fisher, there are still exceptions available to police even if a warrant requirement were put in place. It's a big loophole but one that should be considered necessarily rare (which it probably won't be in practice): exigent circumstances.

During this discussion, an interesting point emerged. The state itself reached the same conclusion as Riley's legal team: there's no useful analogue from past cases that offers comparative circumstances for today's smartphones.

[W]e have an exploratory search where not even the State has contended the amount of information looked at is equivalent to what somebody could have carried around in the old days.

The government's favorite apples-to-oranges comparison -- the diary -- is even worse than simply saying the phone is nothing more than an address book with some pictures between the pages. Not only is it a relatively worthless comparison, but even the few originating cases are outliers. For the government to consider a phone to be a diary, it has to ignore huge amounts of context before beating the argument to fit and painting it to match, as Fisher points out.

The reason I think that you don't find diary cases when you look for them is because people hardly ever carry a diary outside the home with them. It was kept in a private drawer in the bedroom or wherever it might be kept, and in the highly, highly unusual circumstance where somebody did, you might have a hard case.

This… is the opposite world. The modern reality of smartphones is that it is an indispensable item for everyday life of a modern professional and, indeed, most anyone. You can't leave the house without it and be ­--­ consider yourself to be responsible and safe. And so you take ­­ to take a world where the police might try to say, we can get the stray diary because of the importance of the categorical rule under Robinson and try to apply that into a world where everybody has everything with them at all times…

Edward Dupont, representing California, advances a familiar government argument -- if it doesn't violate in a singular instance, then expansive searches pertaining to the same sort of subject matter doesn't suddenly result in a Fourth Amendment violation. (This has been deployed in defense of the NSA's surveillance programs.)

The theory, even if I'm carrying only five photographs or if I'm carrying two letters as was the case in the Chiagles case, for instance, that Judge Cardozo decided in the '20s, they are likely to be very personal, very private photographs. So I'm not sure that the expansion of volume increases the invasion of privacy.

On one hand, multiplication by zero. On the other hand, smartphones aren't just ostentatious data generators -- they have practical uses as well. To quote a decision from the Massachusetts Supreme Court which ruled warrantless access to cellphone GPS data was unconstitutional:

"People buy [cellular telephones] to communicate with others, to use the Internet, and for a growing number of other reasons. But no one buys a [cellular telephone] to share detailed information about their whereabouts with the police"

Justice Kagan asks if any arrest (a seatbelt violation in this instance) should allow police to search cell phones. Dumont calls that a "marginal case" and not relevant to the discussion. Kagan disagrees:

Your argument and the Solicitor General's principal argument applies to any arrest. And it applies to everything on a cell phone. People carry their entire lives on cell phones. That's not a marginal case. That's the world we live in, isn't it?

Dumont then argues that this particular case doesn't deal with an "entire life" on a cellphone, so this potentiality shouldn't be considered. Fair enough, in terms of particulars, but this is the Supreme Court -- the highest court in the land. What it decides becomes standard operating procedure for law enforcement from this point on. Dumont seems to think he can conveniently bury his head in this case and ignore the numerous implications it raises. Justice Ginsburg makes this point.

The Court is to make a rule not for this particular case, but for this category of cases. And I think what Justice Kagan pointed out is very nervous concern. [...] It's your rule, then, that the cell phone is fair game no matter what the crime, no matter how relatively unimportant the crime. Is it all misdemeanors, all misdemeanors and that opens the world to the police.

Dumont then claims that this case is "different" because it involved a "violent" suspect, rather than a lesser form of criminal. Justice Kennedy smacks that argument into the stands.

MR. DUMONT: I think you need to look at the generality of cases. And in the generality of cases, first of all, you will not be dealing with minor crimes. You'll be dealing with serious crimes. And second, you'll be dealing with police who are --­­ undo their job by booking ­­--

JUSTICE KENNEDY: Are you saying we're just resting on the discretion of the officer? Because if that's so, then that leads to the next question. Well, if that's so, then we'll get a warrant.

After that, Dumont tries to make the point that sometimes there's not going to be an opportunity to get a warrant, which apparently he feels is problematic enough that any warrant requirement should be eliminated. Kennedy reminds Dumont that he's wandered back into "exigent circumstances" territory, an option that will still be available even if the Court decides warrants are necessary.

Justice Breyer tries to nail down where the government actually stands on the warrant issue.

So there are three possibilities: Possibility one, smartphone, no, get a warrant, unless exigent circumstances. Possibility two, yes, it's just like a piece of paper that you find in his pocket. Or possibility three, sometimes yes, sometimes no. All right, which of those three is yours?

Dumont isn't willing to go quite as far as the government did in its filing in the Wurie case (warrants just prevent cops from catching bad guys) -- at least not while speaking directly to the justices.

[M]y in­between rule with the explanation is that for information that is of the same sort that police have always been able to seize from the person, that includes diaries, letters, all other kinds of evidence, purely evidentiary, photographs, address books, for evidence of that same sort, the same rule should apply.

That's not an answer, and the Justice Breyer knows it. The government is again arguing for LEO discretion, which isn't a place any court can (or should) draw the line.

Your rule is sometimes. So I say: Sometimes; what's that? And you say if it is the kind of thing that the police could have searched for if it wasn't on the computer, then they can search for it on the computer. Now, since they can search for everything in your pockets before when it isn't the computer, then why isn't yours everything? [...]

So I guess what you're saying is I thought it was category two, sometimes, but really it's category three, always.*

It certainly appears the government has exactly that in mind -- no warrant requirement. Ever. The lawyer claims "sometimes," but refuses to delineate further than "we'll know it when we see it." Here's Dumont again, attempting to craft the haziest bright line ever by arguing that simply being arrested -- never mind actually charged -- removes nearly every expectation of privacy.

[T]he fact of the arrest necessarily and legitimately largely abates the privacy interest of the individual and his person and anything he or she has chosen to carry on the person.

Now, modern technology makes it possible for people to choose to carry a great deal of information. But that doesn't change the fact that the reasonable expectation, if a person is subject to custodial arrest, is that the police will search the person and look at things that they find…

Justice Kagan in response:

In other words, one has to keep one's cell phone at home to have an expectation of privacy in it?

Dumont digs in, and the argument gets even worse. Now, he claims citizens need to expect that their cell phones are, for all intents and purposes, open books for law enforcement to avail itself of. If they don't like that "fact," they can just not use a cell phone.

No, we're not saying that at all. But what we are saying is that people do make choices, and those choices have consequences. And the consequence of carrying things on your person has always been that if you are arrested, the police will be able to examine that to see if it is evidence of crime.

This makes no more sense than the government's argument that a no-fly list doesn't violate anyone's rights because flying is a "convenience." The reality of the situation is that a cell phone -- much like air travel in a country of this size -- isn't really a choice. It's a necessity. But the government acts as though people are complaining about the downside of pure luxuries.

Michael Dreeben, also arguing for the government, thinks the reduction of privacy as the result of an arrest makes this all acceptable. But Justice Ginsburg wonders why, if the person is being detained, is it so impossible to just go and get a warrant?

But, Mr. Dreeben, if the --­­ the understanding was, when there's time, get a warrant. So here, you can seize the phone and you can secure the phone, and you could go to a magistrate and within an hour get permission to search. But what is the reason for cutting out the magistrate here?

In response, Dreeben presents the same hypothetical -- that a criminal will wipe the phone during the hour or so it takes to get a warrant. Dreeben presents only anecdotal evidence from the FBI and other stuff he "heard" from other state police in support of this theory that a majority of criminals have implemented wiping technology.

Justice Breyer:

[Y[ou're saying now we should allow searches of all cell phones because there might be a technology that hasn't yet in fact been used in any of the States that have this rule.

After a lot of arguing over whether the "no warrant" rule would apply to arrests for non-serious criminal activity (the government says it won't but obviously can't really make that promise), Dreeben says this lack of Fourth Amendment protection is the best thing for "society."

At that moment society's interests are at their apogee in locating evidence relating to the crime of arrest and apprehending related suspects, and the suspect has a highly reduced privacy interest.

In the interest of simplification and the establishment of a bright line, the "always obtain a warrant" would appear to be the correct decision, one that still provides Fourth Amendment protections. The government's fear of wiped phones and encryption seems to be largely based on speculation and anecdotes, rather than any documented evidence. There are ways to prevent remote wiping, but the government considers those to be too burdensome to entertain seriously.

The warrant process will always be accompanied by the exigent circumstances loophole, which would allow police to weigh officer and public safety as factors for speedier access. But in most cases -- and most certainly in this one -- there is plenty of time to obtain a warrant. In this particular case, the disputed search didn't occur until two hours after the arrest.

But the government doesn't want a bright line. What it wants is instant access and it expects the public to be perfectly fine with the decision resting in the hands of "officer discretion." But it's extremely doubtful the public has much faith in officer discretion at this point, and the government's own actions have indicated that law enforcement agencies tend to perform a lot of fishing expeditions simply because standing decisions allow them to. Reduced privacy expectations in all things has been the government motto -- it makes NSA surveillance "legal" and allows investigators to dig around in people's electronics.

The justices don't seem to be very moved by the government's assertions. There was a lot of pushing back, which is a good sign. The downside is that these arguments really made no headway towards a more thoughtful approach to modern technology, even with the justices throwing around terms like "Facebook" and "Fitbit."

from the which-of-them-is-more-dirty? dept

Porn. It's what the internet is for, as they say. Also, it's very hard for some people to avoid. Entire governments, too. But what about the little people with big parts that make all this wonderfully ubiquitous smut possible? It's easy to forget about the hard (ahem) working individuals that make these small businesses and big industry spurt out their wares like (insert grossest applicable analogy here). And now it's apparently difficult for those mostly-young laborers to get paid, since some banks seem to have adopted a rather convenient moral code when it comes to who can open accounts with their institutions.

Chase Bank has reportedly sent out letters to hundreds of porn stars notifying them that their accounts would be closed on May 11. Teagan Presley confirmed to XBIZ that her personal account was one of the ones shut down.

“I got a letter and it was like please cancel all transactions, please fix your automatic pay account and make sure everything’s taken care of by May 11,” Presley told XBIZ. “I called them and they told me that because I am, I guess, public and am recognizable in the adult business, they’re closing my account. Even though I don’t use my account, it’s my personal account that I’ve had since I was 18, when it was Washington Mutual before Chase bought them out.”

In other words, Chase Bank is slutshaming adult performers and closing their personal accounts, whether those accounts are associated with the adult businesses in question or not. It's apparently something of a morality play. That may find some support with the more conservative and/or religious factions in America, but I'd say it's an interesting move by the same bank that has, among other transgressions: financed the Nazis, engaged in fictitious trades, wrongfully foreclosed on active US soldiers, financed other Nazis, bankrupted American towns through changes in their debt-rate programs, violated the Sherman Act, refused to return funds to Jewish families that were victims of those same Nazis they financed, lied to people trying to finance automobiles, and financed the damned Nazis. To invoke a morality clause with all of that on one's resume would be a bit like having Donald Sterling fire an employee for being racist.

Unfortunately, because the banking industry appears to have rules all its own, it's unclear whether anything can be done about this kind of blatant discriminatory policy.

Adult industry attorney Michael Fattorosi told XBIZ that Chase and other banks have “notoriously closed adult accounts or people in the industry’s accounts, but nothing like this.”

Whether legal recourse for those whose accounts were nixed is plausible — and, if so, which path is optimal — remains unclear, given that the situation is novel and that banks generally have the prerogative to do business with who they choose (yes, that often means flagrant discrimination).

And, yes, private businesses can choose with whom they do business, but I would suggest that if Chase wants to apply morality to their business, we should as well. That would mean they need to be paying far greater repercussions for their transgressions than the wrist-slapping they've experienced thus far.

from the that's-a-hell-of-a-long-investigation dept

It's no secret that many in the US government would love to find a way to charge Wikileaks and Julian Assange with criminal activities for reporting on leaks. However, as many have pointed out, doing so would create a firestorm, because it's difficult to see how what Wikileaks did is any different than what any news publication would do in publishing leaked documents. The attack on press freedom would be a major problem. Still, the Justice Department has spent years trying to come up with any way possible to charge Assange with a crime. They even tortured Chelsea Manning and then offered her a deal if she lied and claimed that she "conspired" with Assange to release the State Department cables. That didn't work. Even as the DOJ couldn't produce any evidence that Manning and Assange conspired, the Defense Department insisted it had to be true. Last year, however, there were finally reports that the DOJ was just about ready to admit that it had no legal case against Assange, with officials effectively admitting that it would be tantamount to suing a newspaper.

But... apparently the DOJ's investigation still isn't over. As Marcy Wheeler noted, a FOIA request by EPIC concerning the DOJ's investigation into Wikileaks supporters has been rejected, because the DOJ's investigation of Wikileaks is still not closed. In fact, the judge notes that there are "at least two investigations" still going on -- the one on Wikileaks itself, and Chelsea Manning's appeal. On the Wikileaks investigation:

The second type of enforcement proceeding, generally, is the DOJ’s civilian criminal/national security investigation(s) into the unauthorized disclosure of classified information that was published on the WikiLeaks website. The investigation of the unauthorized disclosure is a multi-subject investigation and is still active and ongoing. While there have been developments in the investigation over the last year, the investigation generally remains at the investigative stage. It is this second category of enforcement proceeding that is actually more central to defendants’ Exemption 7(A) withholdings in this case.

So, despite basically admitting last year that there is no case, the government has not yet given up that it can find something to pin on Assange and "there have been developments in the investigation over the last year." This is an investigation that has been going on for about four years already. It would appear that at least some folks at the DOJ are still obsessed with finding some way to charge Assange with some crime, just because.

from the red-line-of-law dept

One of the shrewder moves of the Chinese government was to allow home-grown startups like Alibaba, Baidu, Sina and Tencent to stand in for US Internet companies that were blocked in China. Sina is best-known for its Weibo service, the leading microblogging platform in China, and has featuredseveraltimes on Techdirt as the Chinese authorities have tried to rein in the discussions there when they started straying into forbidden areas. Surprisingly, it's another division of Sina, its online publishing arm, that has just been hit by a serious punishment from the Chinese government:

China's Internet giant Sina.com will be stripped of its online publication license, a penalty that might partially ban its operations, after articles and videos on the site fell prey to the country's high-profile anti-porn movement.

According to a statement released on Thursday by the National Office Against Pornographic and Illegal Publications, 20 articles and four videos posted on Sina.com were confirmed to have contained lewd and pornographic content following "a huge amount" of public tip-offs.

As of result, the State Administration of Press, Publication, Radio, Film and Television decided to revoke the company's two crucial licenses on Internet publication and audio and video dissemination and impose "a large number of fines."

People suspected of criminal offenses in the case have been transferred to police organs for further investigation, the statement said.

That comes from an article published by Xinhua.net, the Chinese government's official news service, which therefore lends the following comment extra weight:

Last year, Sina.com received administrative punishments twice for spreading online publications with banned contents, and its latest offense seems to have pushed authorities over the edge, with the statement describing the website as "having not learned a lesson at all and turning a cold shoulder on social responsibility."

"[The website] overstepped the red line of law... and it must be punished in accordance with laws and regulations," it said.

Well, that may be, but it does seem curious that such a high-profile and popular Internet company should be so severely slapped down in public over just "20 articles and four videos" -- a tiny proportion of its total holdings. It's hard not to see this as a warning to all China's Internet companies to be careful. That interpretation is bolstered by another comment reported by Xinhua.net:

Meanwhile, the office warned other Internet service providers against similar errors, telling them to set up a comprehensive online info management system and check themselves for banned content.

Earlier this week, the country's "Cleaning the Web 2014" campaign saw 110 websites shut down and some 3,300 accounts on China-based social networking services as well as online forums deleted.

The office vowed to maintain a persistent crackdown on online pornography and hand down whatever punishments violators deserve, whether it be fines, license removals or pursuit of criminal liabilities.

This makes it clear that there is a crucial quid pro quo for China's giant Internet companies, no matter how big they have now become (in 2012, Alibaba's sales were bigger than those of Amazon and eBay combined): feel free to make big capitalist profits serving the huge demand for online services in China, but just remember never to overstep the state's "red line of law".

from the sore-losers dept

You know what I bet law enforcement folks really hate? This whole swatting thing that sometimes happens. For those of you not aware, swatting is when you fake a call into police that results in a local SWAT team being dispatched to your victim's residence, typically shortly followed up by you getting a not-so-pleasant visit from the authorities. It's a really stupid thing to do, it's dangerous, it's criminal, and it makes you a horrible person. But when it's all over losing in a damned video game, then it's callous on a level too far off the charts to map.

Yes, it's that age-old story of a person who couldn't handle losing in Call of Duty calling in a double murder and getting SWAT to visit the winner's home. I have a pretty sick sense of humor, and a wonderful eye for the profane, I might add, but this isn't funny. People could have literally died. And the authorities aren't going to screw around with this, either.

Nassau County District Attorney Kathleen Rice issued a statement on Tuesday's "swatting" incident, calling it an "outrageous waste of law enforcement resources and taxpayer dollars. Through a collaboration with our law enforcement partners, we will use every tool we have to track down whoever threatens public safety like this," it said. "'Swatting' is a serious crime that endangers first responders and those in legitimate need of their help. We will hold any perpetrators accountable and seek restitution for the tax dollars wasted."

I imagine that, once this person is found, a hellacious number of charges will be brought against them. Calling in a false report, misuse of public funds/authorities, public endangerment, fraud, blah, blah, blah. In the end, someone is going to have some serious trouble coming their way and they're damned well going to deserve it. Terrifying an entire neighborhood over losing a game isn't even childish, it's evil. Stop it. Bad humans.